Hacker v. Baesler

¶1Appellants Hacker, Thompson, and Sad-ler, as owners in partnership of a parcel of land located in Lexington-Fayette County, submitted a proposal for a zoning amendment, seeking to effect a change in the property’s zoning classification.

¶2The application was made and processed in accordance with the procedures established by KRS 100.21K1).1 The Urban County Planning Commission recommended that the request for rezoning be denied. The Urban County Council, by a majority of its entire membership, voted to override the commission’s recommendation, and passed an ordinance adopting the proposed amendment.

¶3This ordinance became the subject of a mayoral veto. Taking the position that the measure was not subject to veto, the appellants brought an action in Fayette Circuit *708Court. That court, and subsequently the Court of Appeals, held that the mayor’s veto power extends to the rezoning ordinance.

¶4We reverse.

¶5Local authority to regulate land use derives from the police power of the General Assembly, delegated to cities and counties by way of KRS Chapter 100. KRS 100.211 details the exclusive procedure by which a zoning map amendment may be accomplished. Once the planning commission has made its recommendation on a proposed amendment, the legislative body may override the commission by a full majority vote. It is apparent that the General Assembly intended that an ordinance adopting a zoning amendment, enacted pursuant to the statute, is final and effective, subject only to judicial review pursuant to KRS 100.347(3).2 The statutory procedure does not contemplate that the ordinance is subject to veto.

¶6Appellees contend that the General Assembly has authorized the mayoral veto by way of KRS 67A.060, which grants ordinance powers to urban-county governments, and which provides, in part:

(4) All ordinances and resolutions shall be effective upon passage, unless3timely vetoed by the chief executive officer of the urban-county government pursuant to the provisions of the comprehensive plan of the urban-county government. [Emphasis added; footnote added.]

¶7The Lexington-Fayette Urban County Charter4 appears to confer upon the mayor the power to veto virtually any ordinance. With enumerated exceptions not relevant here, no ordinance becomes effective upon passage. In the present context such an interpretation of the charter places it in direct conflict with a general statute, KRS 100.211, whereby the General Assembly has provided a comprehensive scheme of legislation on the subject of zoning map amendment. Alteration of this scheme by urban-county governments is not contemplated by the grant of powers to such governments via KRS 67A.060(1),5 which forbids the enactment of ordinances in conflict with general statutes or the constitution. Whether or not the charter is technically an “ordinance,” there is evidenced no legislative intent to authorize a local government to supersede a statute by any means. Moreover, KRS 67A.020 provides that the comprehensive plan of an urban-county government (which plan is presum*709ably embodied in the charter) must comport with the Constitution of Kentucky. This requirement would of course apply even in the absence of the statute. Insofar as the charter purports to modify the criteria of KRS 100.211(1), it represents an attempted usurpation of the legislative power of the General Assembly, offending section 29 of the Kentucky constitution.6 Subsection (4) of KRS 67A.060, supra, does not validate a veto exercised pursuant to an unconstitutional provision of the Urban County Charter.

¶8The veto power is also inconsistent with constitutional guarantees of due process and equal protection, given the unique attributes of a zoning map amendment proceeding. Much argument has been offered as to whether the amendment process ought to be labeled legislative, judicial, quasi-judicial, etc. But the ultimate question is, considering the nature, subject, and purpose of the proceeding and the constitutional rights of the participants, how much process of law is due?

¶9In American Beauty Homes Corp. v. Louisville & Jefferson County Planning & Zoning Comm’n, Ky., 379 S.W.2d 450 (1964), it was held that the decision on a proposal to rezone a property is a nonjudicial function, and, separation of powers being mandated by the constitution, a function which the legislature may not impose upon the courts by mandating a trial de novo upon appeal. This Court termed the decision “administrative,” and concluded that the standard of review is: (1) whether the Commission 7 acted within its statutory powers; (2) whether procedural due process was afforded; and (3) whether the decision was supported by substantial evidence. 379 S.W.2d, at 456. In adopting this standard of review, American Beauty Homes holds, by necessary implication, that the amendment procedure, while nonjudicial, is also non-legislative. The Court noted that an administrative body has been realistically characterized as a fourth branch of government. Id.,at 458 n. 20.

¶10In City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971), it was held that a local legislative body, in deciding a rezoning case, acts in an adjudicatory capacity, and not in a general law-making role:

[W]hen the local legislative body is used as a vehicle not to make generally applicable law, rules, or policy, but to decide whether a particular individual as a result of a factual situation peculiar to this situation is or is not entitled to some form of relief, then the so-called legislative body must act in accordance with the basic requirements of due process as are applicable generally. Judicial review in this particular situation to determine whether or not the action is “arbitrary” concerns itself with whether the basic elements of due process have been afforded including whether the action was based upon substantial evidence. To declare otherwise would sanction organized favoritism and perpetuate this anomaly: Constitutionally guaranteed freedom from arbitrary action applies only to recommendations and not to accomplished fact in rezoning cases.

¶11Id., at 178.

¶12While the zoning classification which an individual property owner should enjoy is not a justiciable issue, an ordinance effecting an amendment to reclassify a particular property is nonetheless the culmination of a process essentially adjudicatory. KRS 100.211 creates (or perhaps merely confirms) the right of a property owner to propose an amendment. Any amendment must be consistent with the comprehensive zoning plan, unless the plan is found to be inapplicable to the situation presented.8*710The interests of an identifiable, individual property owner are weighed against the statutory criteria, and, often, against the interests of identifiable opponents of the amendment. The determination turns upon facts specific to one discrete property. Such fact-finding, although hybrid, is inherently more adjudicative than legislative, and the result must be supported by substantial evidence.

¶13Appellees submit that the veto in the present case was supported by substantial evidence. This argument misses the point. The executive power of veto (Latin, “I forbid”) is present in the history and philosophy of our system of government as a check against the law-making power of the legislature. It is intrinsically arbitrary and, where constitutionally granted, non-reviewable. The fact that the charter requires the mayor to inform council of the reasons for his action does not render the veto power less arbitrary. The Kentucky Constitution similarly requires the governor to state his/her objections to a vetoed bill.9 The judiciary may not decide the merits of those objections; only the legislative body may, in reconsidering the legislation.10

¶14In the present case, even if the effect of the veto (i.e., denial of the amendment) was supported by substantial evidence, and even though the veto might be overridden by a 3/5 vote of council,11 these considerations do not secure to the applicant either the due process or the equal protection of law guaranteed by the Kentucky and United States constitutions.12 The veto power would invite arbitrary discrimination between applicants who had emerged from the due process arena of council, according to the statutory paradigm, with equal success. One, perhaps at the mere whim of the mayor, might be burdened to persuade a super-majority of the council of the merits of his cause, or to convince a reviewing court that denial of the amendment was without substantial ev-identiary basis; whereas a second, finding the mayor favorably disposed, could repose if the decision of council was supported by substantial evidence. Furthermore, and perhaps most significantly, the veto power could be exercised only to defeat an amendment once passed; it could never be applied to revive a proposal which had failed before the council. It would thus constitute a formidable, perhaps decisive resource beneficial only to the opponents of an amendment — that is, only to those on one side of a controversy, in a proceeding to which severe due process requirements attach.

¶15Once a proponent of a zoning map amendment has prevailed before the local legislative body under KRS 100.211(1), the *711constitution will not accommodate a peremptory mayoral power to dictate that the successful applicant is to become an appellant, rather than an appellee.

¶16The judgment is reversed and this matter is remanded to the Fayette Circuit Court with directions to enter a new judgment in conformity with this Opinion.